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[2019] ZAGPJHC 526
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Z A and Others v Minister of Home Affairs and Others (40089/2019) [2019] ZAGPJHC 526 (29 November 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG
LOCAL
DIVISION, JOHANNESBURG
Case
No:
40089/2019
In
the matter between:
A,
Z
First Applicant
T,
K
Second Applicant
A,
S
Third Applicant
And
THE
MINISTER OF HOME AFFAIRS
First Respondent
THE
DIRECTOR GENERAL,
Second Respondent
DEPARTMENT
OF HOME AFFAIRS
AFRICAN
GLOBAL GROUP (PTY) LTD
Third Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
The Applicants instituted this urgent application seeking an order
declaring their continued detention at the Lindela, detention
centre
to be unlawful and that they should be immediately released. They are
Ethiopian nationals and asylum seekers in the Republic
of South
Africa.
[2]
They state in their founding affidavit that they arrived in South
Africa on the 10 August 2019 via Beit Bridge border post.
They,
according to the deponent to the founding affidavit, fled from
Ethiopia in fear of persecution.
[3]
On arrival in South Africa, they sought shelter from their countrymen
at Makhado, Limpopo. They on several occasions unsuccessfully
tried
to apply for asylum at the Refugee Reception Centre.
[4]
The immigration officers and the police arrested the applicants on 3
October 2019, during an operation in Makhado. They explained
to the
arresting officers both in Mkhado and at Lindela that they were
asylum seekers and needed an opportunity to make their applications.
The officers rejected their explanation and request. They state in
their founding affidavit that they did not set out the grounds
for
their alleged persecuted in Ethiopia as according to them, such
information is confidential in terms of s 21 (5) of the Refugees
Act
(RA).
[5]
The Applicants were transported from Makhado to Lindela in
Krugersdorp on the 5 November 2019 for deportation to their country
of origin.
[6]
The Respondents opposed the application. They after acknowledging
that the provisions of s 21(5) provide for the confidentiality
of
asylum applications and the information contained therein, they
contended that such a requirement does not preclude them from
the
need to furnish any information whatsoever about those fundamental
issues in section 2 of the RA. They claimed that the application
stands to fail because it does not disclose the grounds of
persecution if the Applicants were to be deported to Ethiopia. The
grounds of persecution are generally:
"race,
religion, nationality, political opinion or membership of a
particular social group, or his or her life, physical safety
or
freedom would be threatened on account of external aggression,
occupation, foreign domination or other events seriously disturbing
or disrupting public order in part or the whole of that country."
[7]
The deponent to the answering affidavit in support of the allegation
that the application stands to fail because the Applicants
did not
set out the jurisdictional facts relevant to sustain their
application stated in paragraph 6.1 that:
"6.1
A party seeking the protection of the Refugees Act must, at the very
least, plead the jurisdictional facts set out in
section 2 of the
Refugees Act to enable the Court to find that resort to the Refugees
Act is justified. The necessity in setting
out the factual basis is
not so that the Court can consider the merits of the application for
asylum but in order to satisfy the
Court that the application is one
which could invoke consideration and application of the Refugees Act.
Absent fundamental and
necessary averments, it is impossible for the
Court to determine the application and dispute before it.
6.2
Although section 21 (5) provide(s) for the confidentiality of asylum
applications and information contained therein must be
ensured at all
times. However, such provision does not preclude from the need to
furnish any information whatsoever about those
fundamental issues in
section 2 of the Refugees Act."
[8]
Furthermore, the Respondents contended in the answering affidavit
that the application stands to fail because, at the time of
their
arrest, they informed the Immigration officer that they were in the
country for vacation. In this respect, the Interviewing
Questionnaire
in terms of s 41 (1) of the Immigration Act read with Regulation 32
was attached to the answering affidavit.
[9]
In
support of the above proposition, the Respondents relied on the
unpublished case of Liban Velaquez Rivero Vincente' Gauteng Division,
Pretoria.
[1]
The copy of
that judgment was handed in Court. The Court, in that case, dealt
with an Applicant who had been found to have
fraudulently obtained a
permit. The Court dismissed the application on the bases that unlike
the number of cases referred thereto,
the applicants failed to avail
information necessary to sustain the claim.
[2]
In
other words, the Court found that the Applicant in that case failed
because he did not disclose the grounds upon which he alleged
that he
was or would be persecuted if he was to be returned to his country of
origin.
Legal
principles
[10]
Section 2 of the RA provides for a general prohibition of refusal of
entry, expulsion, extradition or return to another country
of a
person who has entered South Africa in the circumstance where he or
she may be persecuted if returned to such a country. The
section
reads as follows:
"2.
Notwithstanding any provision of this Act or any other law to the
contrary, no person may be refused entry into the Republic,
expelled,
extradited or returned to any other country or be subject to any
similar measure, if as a result of such refusal, expulsion,
extradition, return or another measure, such person is compelled to
return to or remain in a country where-
a.
he or she may be subjected to persecution on account of his or her
race, religion, nationality, political opinion or membership
of a
particular social group; or
b.
his or her life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination
or
other events seriously disturbing or disrupting public order in
either part or the whole of that country.”
[11]
Regulation 2(2) of the RA, provides:
"any
person who entered the Republic and is encountered in violation of
the Aliens Control Act, who has not submitted an application
pursuant
to sub-regulation 2(1),
but indicates an intention to apply
for asylum shall be issued with an appropriate permit valid for 14
days within which they must
approach a Refugee Reception Office to
complete an asylum application." (my emphasis).
[12]
Any person who upon arrest by the authorities indicate the intention
to apply for asylum is entitled to be released and be
issued with a
temporary asylum seeker permit in terms of s 22 of the RA.
[13]
Section
22 imposes an obligation on the officials of the Department of home
affairs to issue a temporary permit to a person who
upon arrest
indicates that he or she intends to apply for asylum permit.
[3]
[14]
The statute further requires that:
"The
Refugee Reception Officer must, pending the outcome of an application
in terms of section 21(l), issue to the Applicant
an asylum seekers'
permit in the prescribed form allowing the Applicant to sojourn in
the Republic temporarily, subject to any
condition, determined by the
Standing Committee, which are not in conflict with the Constitution
or international law and are endorsed
by the Refugee Reception
Officer on the permit."
[15]
Section 21 (4) of the RA provides:
“
(4)
Notwithstanding any law to the contrary, no proceedings may be
instituted or continued against any person in respect of his
or her
unlawful entry into or presence within the Republic if- (a) such
person has applied for asylum in terms of subsection (1),
until a
decision 35 has been made on the application and, where applicable,
such person has had an opportunity to exhaust his or
her rights of
review or appeal in terms of Chapter 4; or (6) such person has been
granted asylum.”
[16]
As
indicated earlier in this judgment the officials of the Department of
home affairs or other government officials must ensure
that a
foreigner who is encountered in the country is assisted in making an
application for asylum once that person indicates the
intention to do
so.
[4]
There are no time
frames within which an application for asylum needs to be made by an
asylum seeker. An Applicant is entitled
to assistance in making an
application for asylum even after his or her arrest.
[5]
The consequences of an application for asylum is that s 21 (4) of the
RA prohibits the institution of proceedings against a person
who has
applied for asylum pending finalisation of that process and this
include deportation.
[17]
Section 21 (4) provides:
"(4)
Notwithstanding any law to the contrary, no proceedings may be
instituted or continued against any person in respect of
his or her
unlawful entry into or presence within the Republic if- (a) such
person has applied for asylum in terms of subsection
(1), until a
decision 35 has been made on the application and, where applicable,
such person has had an opportunity to exhaust
his or her rights of
review or appeal in terms of Chapter 4; or (6) such person has been
granted asylum."
[18]
In
terms of s 12 (1) of the Constitution, every person has the right to
freedom and security, which includes the right not to be
deprived of
freedom arbitrarily or without just cause. And thus the burden to
justify the detention rests on the detaining authority.
[6]
Analysis
[19]
Following the above discussion, I find that the Respondents have
failed to discharge their duty of showing that the continued
detention of the Applicants was justified, for the following reasons:
The Applicants were after their arrest in Makhado transported
to the
detention centre at Lindela. The Applicants asserted that upon their
arrest, they informed the arresting officers that they
wished to
apply for asylum. The Applicants' attorneys of record confirmed the
following in the letter (in paragraph 7) that:
"7
At the time of their arrest and on several occasions after that, our
clients tried to inform the immigration officers
and police officers
that they are the asylum seekers and that they want to apply for
asylum in the Republic."
[20]
The Respondents never responded to the letter, and thus it seems
reasonable to infer that, that version remains undisputed.
[21]
The deponent to the answering affidavit disputed and contended that
the Applicants informed them that they had a visiting permit
at the
time of their arrest.
[22]
In my view even assuming that the version of the respondents was to
be accepted that the Applicants said that they had visiting
permits,
the situation in the law relating to the detention to the detention
changed as soon as they received the letter from Applicants'
attorneys dated 8 November 2019. In law, this means that the latest
that the Respondents ought to have realised the applicants
was on 9
November 2019. This is so because it stated clearly in the letter
that the Applicants intend to apply for asylum. In this
respect, the
letter stated (at paragraph 8) the following:
"8
It is our instructions to humbly advise you that our clients intend
to apply for asylum and that in terms of Regulation
2(2) of the
Refugees Act they must be afforded an opportunity to do so."
[23]
The regulatory frame of the RA kicks in at any time and specifically
from the point that a person indicates the desire to apply
for
asylum. There is nothing that requires and confine an asylum seeker
to disclose the intention to apply for asylum at the point
when he or
she is encountered by the immigration authorities. In Bula the SCA
held that:
".
. The word 'encountered' in Regulation 2(2) must be given its
ordinary meaning which is to meet or come across unexpectedly.
The
regulation does not require an individual to indicate an intention to
apply for asylum immediately he or she encounters the
authorities. It
should not be interpreted to mean that when the person does not do so
there and then he or she is precluded from
doing so after that. The
purpose of subsection 2 is clearly to ensure that where a foreign
national indicates an intention to apply
for asylum, the regulatory
framework of the RA kicks in, ultimately to ensure that genuine
asylum seekers are not turned away.
It is clear that the applicants
communicated to the Department's officials when they were detained at
Lindela. They expressed their
wish through their attorneys in the
letter referred to earlier in this judgment that they intended to
apply for asylum. Once the
appellants, through their attorneys,
indicated an intention to apply for asylum they became entitled to be
treated in terms of
Regulation 2(2) and to be issued with an
appropriate permit valid for 14 days, within which they were obliged
to approach a Refugee
Reception Office to complete an asylum
application."
[24]
The
other point raised by the Respondents is that the Applicant in their
application before this Court did not disclose the jurisdictional
facts relating to the grounds for fear of persecution if they were to
be deported. This bears no merit. Court processes and documents
used
in such processes are public and thus disclosing the jurisdictional
facts relevant for a successful asylum application would
defeat the
protection of non-disclosure as envisaged in s 21 (5) of the RA. The
interrogation and investigation of the application
is the
responsibility of the Refugee Reception Officer (RRO).
[7]
It is at that stage and during that process when the asylum seekers
has receive assistance and guidance from the RRO or officers
who are
knowledgeable about the process that the disclosure would be
required.
Order
In
light of the above discussion, I make the following order:
1.
It is declared that the continued detention of the Applicants is
unlawful.
2.
The first and second respondents are directed to immediately release
the Applicants from detention at detention Facility at Lindela
not
later than 16:00 on the date of this order.
3.
It is declared that each of the applicants is entitled to be afforded
a period of 14 days after the release within which to approach
the
Refugee Reception Office to apply for an asylum seeker permit.
4.
On presenting themselves individually at any Refugee Reception Office
as aforesaid, the first and second respondents are to issue
the
applicants with a Section 22 Permit pending finalisation of his
asylum application.
5.
The first and second respondents are directed to pay the costs of
this application.
____________
E
Molahlehi
Judge
of the High Court, Johannesburg
Representation:
For
the Applicant:
Represented
by:
For
the Respondents:
Represented
by:
Heard
on: 21 November 2019
Delivered
on: 29 November 2019
[1]
Case no 27934/2019.
[2]
See the cases of Ruta v Minister of Home Affairs[
[2]
(CCT02/18)
[2018] ZACC 52
;
2019 (3) BCLR 383
(CC);
2019 (2) SA 329
(CC) (20
December 2018), Bula and Others v Minister of Home Affairs and
Others, (589/11)
[2011] ZASCA 209
;
[2012] 2 All SA 1
(SCA);
2012 (4) SA 560
(SCA) (29 November 2011),
Arse
v Minister of Hobeme Affairs
and
Others, (25/2010)
[2010] ZASCA 9
; 2010 and
Abdi
and
Another
v
Minister of Home Affairs
and
Others, (734/2010) [2011] ZASCA 2; 2011 (3) SA 37 (SCA); [2011]
3 All SA 117 (SCA).
[3]
See Yene Woldemeskel at all v Minister of Home Affairs and Others
(589/11)
[2011] ZASCA 209
(29 November 2011).
[4]
See Abdi v Minister of Home Affairs
2011 (3) SA 37
(SCA).
[5]
See Ersumo v Minister of Home Affairs (69/12) [2012[ ZASCA] at par
7-12.
[6]
See Arse v Minister of Home Affairs [2103] All SA 261 (SCA) at
page 265 and Bula at paragraph 51.
[7]
See Bula paragraph [77].